Professional Documents
Culture Documents
Mpunyb Ulfstein 8
Mpunyb Ulfstein 8
Geir Ulfstein*
I. Introduction
II. The International Covenant on Civil and Political Rights
1. Article 1
2. Article 27
III. ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries
1. Introduction
2. Methodological Issues
3. Right of Participation
4. Land Rights
a. Article 13
b. Article 14
aa. “Traditionally occupy”
bb. “The rights of ownership and possession”
cc. “Shall be recognised”
dd. “Object and purpose”
ee. “Article 34”
c. Article 15
IV. Sami Land Rights and the Proposed Finnmark Act
1. Introduction
2. Article 14
3. Article 34
4. Case Law
5. Consent of the Sami Parliament
V. Conclusions
* The author would like to thank Ann-Gøril Johansen† (who passed away
far too young) and Martin Scheinin for sharing their views on indigenous
rights. Hans Petter Graver deserves special thanks for co-operation in our
joint study on the Finnmark Bill for the Norwegian Ministry of Justice,
and for allowing me to use our report as a basis for this article.
I. Introduction
cial Discrimination UNTS Vol. 660 No. 9464. See further R. Wolfrum,
“The Protection of Indigenous Peoples in International Law”, ZaöRV 59
(1999), 369 et seq.
4 S.J. Anaya, “Introduction”, in: Anaya, see note 1, xii-xxi at xiii-xiv.
5 Proposition to the Odelsting No. 53 for 2002-2003 concerning an Act re-
lating to legal relations and management of land and natural resources in
the county of Finnmark (Finnmark Act).
6 International Covenant on Civil and Political Rights, 1966, UNTS Vol. 999
No. 14668.
7 ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries, 1989, UNTS Vol. 1650 No. 28383.
4 Max Planck UNYB 8 (2004)
1. Article 1
context it is, however, the right to decide over a people’s economic, so-
cial and cultural future, in the form of control over lands and natural re-
sources, as understood in the ICCPR, that is of relevance (internal self-
determination).
The right of self-determination is regarded as a collective right of the
people in question. This has the procedural effect that the individual
right of appeal to the Human Rights Committee (HRC) under article 1
of the (first) Optional Protocol to the ICCPR, since it only covers indi-
viduals claiming to be victims of violations of any of the rights under
the Covenant, does not encompass article 1.9 However, the Committee
has in its General Comment No. 12 (1984)10 stated that the right of self-
determination “is of particular importance because its realization is an
essential condition for the effective guarantee and observance of indi-
vidual human rights and for the promotion and strengthening of those
rights”, (para. 1). Furthermore, in noting that only some state reports
give detailed explanations regarding the implementation of article 1, the
Committee “considers it highly desirable that States parties’ reports
should contain information on each paragraph of article 1”, (para. 3).
The HRC, since 1999, commented on article 1 in connection with
the mandatory country reporting under article 40 of the Covenant. In
its report on Canada in 1999, the Committee stated:
“7. The Committee, while taking note of the concept of self-
determination as applied by Canada to the aboriginal peoples, re-
grets that no explanation was given by the delegation concerning the
elements that make up that concept, and urges the State party to re-
port adequately on implementation of article 1 of the Covenant in
its next periodic report.
8. The Committee notes that, as the State party acknowledged, the
situation of the aboriginal peoples remains ‘the most pressing hu-
11 Doc. CCPR/C/79/Add.105.
12 See M. Scheinin, “The right to self-determination under the Covenant on
Civil and Political Rights”, in: Aikio/ Scheinin, see note 8, 179 et seq. (190).
13 Doc. CCPR/C/79/Add. 112 (1999).
14 Doc. CCPR/C/79/Add. 109 (1999), para. 19.
Ulfstein, Indigenous Peoples’ Right to Land 7
“The State party should take the necessary steps in order to secure
for the indigenous inhabitants a stronger role in decision-making
over their traditional lands and natural resources (art. 1, para. 2).
The Committee is concerned, despite positive developments to-
wards recognizing the land rights of the Aboriginals and Torres
Strait Islanders through judicial decisions (Mabo, 1992; Wik, 1996)
and enactment of the Native Title Act of 1993, as well as actual de-
marcation of considerable areas of land, that in many areas native ti-
tle rights and interests remain unresolved and that Native Title
Amendments of 1998 in some respects limit the rights of indigenous
persons and communities, in particular in the field of effective par-
ticipation in all matters affecting land ownership and use, and affects
their interests in native title lands, particularly pastoral lands.”15
The Committee regards self-determination in relation to land rights
first of all to cover procedural rights in the form of a “stronger role in
decision-making” and “effective participation” in relevant land issues,
but it seems also to express a more general concern about the limita-
tions in land rights and interests.
Finally, the Committee makes the following observation on partici-
pation regarding decision-making when commenting on Sweden’s re-
port from 2002, although reference is made not only to article 1, but
also to articles 25 and 27:
“The State Party should take steps to involve the Sami by giving
them greater influence in decision-making affecting their natural en-
vironment and their means of subsistence.”16
The HRC’s approach to article 1 has been cautious. It seems that the
Committee is developing a practice, in dialogue with the states parties,
on the content of self-determination as it should be understood under
the Covenant. The requirement is first of all that indigenous peoples
should participate in decision-making over land rights, but the Com-
mittee has also indicated that article 1 contains certain substantive re-
quirements. At this stage, it is, however, difficult to determine in more
detail the content of the procedural and substantive requirements.
2. Article 27
1. Introduction
term should not “be construed as having any implications as regards the
rights which may attach to the term under international law” (article 1
para. 3). While the use of “peoples” may have the effect of recognizing
the special situation of the indigenous groups, it does not provide a ba-
sis for a right of external self-determination in the form of secession. 28
But, as we shall see, the Convention provides for extensive rights of
participation in decision-making, which is an important part of internal
self-determination. In addition, in the following discussion a particular
emphasis will be placed on the substantive land rights contained in the
Convention.
2. Methodological Issues
3. Right of Participation
4. Land Rights
a. Article 13
b. Article 14
The distinction between the lands which the peoples “traditionally oc-
cupy” and lands “not exclusively occupied by them” is fundamental in
article 14 para. 1.
The Oxford English Dictionary defines “occupy” as “to hold pos-
session of; to have in one’s possession or power; to hold (a position, of-
fice, or privilege)” or “to live in and use (a place) as its tenant, or regular
inhabitant; to inhabit; to stay or lodge in”.41 Black’s Law Dictionary
gives the following definition of “occupancy”: “the act, state, or condi-
tion of holding, possessing, or residing in or on something; actual pos-
session, residence, or tenancy, esp. of a dwelling or land”.42 There are
three crucial elements in these definitions: the requirements of living in;
using; and possessing an area of land. The Oxford English Dictionary
defines possession as “the visible possibility of exercising over a thing
such control as attaches to lawful ownership (but which may also exist
apart from lawful ownership)”. Black’s defines “possession” as “the fact
of having or holding property in one’s power; the exercise of dominion
over property.”
Indigenous peoples would thus have the rights of ownership and
possession of the land in which they live, use, and exercise control. In
assessing these requirements, a parallel may be drawn to acquisition of
territory by states. In the Eastern Greenland case, the PCIJ stated that
less was required of effective control in remote areas, and that two ele-
ments must be shown to exist: the intention and will to act as sovereign,
and some actual exercise or display of such authority.43
In determining the required exercise of control under the ILO Con-
vention, it is, however, also necessary to take into account the impor-
tance for indigenous peoples of the relationship to land (article 13),
their practices in using the land (article 5), and respect for their customs
or customary law (article 8). This means taking into account use of land
which is not necessarily of an intensive character. Furthermore, acquisi-
tion of rights similar to ownership should not necessarily require exclu-
sive control to the same extent as under ordinary national property law.
Finally, for occupancy to have been exclusive does not mean that
others have not used the area on the basis of limited rights or tolerated
use. Since the term “occupy” includes both living in, using and control-
ling a land area, the fact that others have used the area will not at the
outset entail that the occupation has not been exclusive unless other
parties have also occupied the land area by living there, using and con-
trolling it. A crucial criterion for stating that it is a matter of areas com-
ing under “land not exclusively occupied by them” must be that others
have also practised a combination of settlement and use like the indige-
nous people in question.
The next terms that require interpretation are “ownership” and “pos-
session.” “Ownership” is defined in the Oxford English Dictionary as
“the fact or state of being an owner; legal right of possession; property,
proprietorship, dominion” and in Black’s Law Dictionary as “the col-
lection of rights allowing one to use and enjoy property, including the
right to convey it to others.” In other words, the wording refers not to
various types of material rights, but to the right’s formal status as the
collection of rights in the owner. “Possession” has been defined above.
Another complex of issues attaches to the use of the plural form
“rights of ownership and possession.” One possible explanation for the
plural form is that it refers to the two rights right of ownership and right
of possession. Another is that it builds on a perception that right of
ownership and right of possession are both generic terms for rights of
ownership (owner’s powers) and rights of possession and that it is the
recognition of these types of powers which the provision requires.
43 The Eastern Greenland case, PCIJ Ser. A/B, No. 53, 63.
20 Max Planck UNYB 8 (2004)
46 The ILO’s Committee of Experts has the following view of the definition
of “ownership” in the ILO Convention of 1957: “While the Committee of
Experts had not found an exact equivalence between ‘possession’ and
‘ownership’, it had not found the firm assurance of possession and use to
be in violation of the requirement for ‘ownership’” (ILO Prov. Record
76th Sess. 1989 (25), 23).
22 Max Planck UNYB 8 (2004)
ple’s land rights.47 It is important here, in the first place, that the alter-
native text proposal “rights of ownership or possession” was rejected.48
This indicates that the inclusion of the word “possession” was not in-
tended to weaken rights of ownership.49
47 See the ILO’s comment during the negotiations: “As concerns the use of
the terms ‘ownership’, ‘possession’ and ‘use’, the Governments of Canada
and Norway have made identical proposals based on a proposal submitted
during the first discussion. In view of other observations received, the Of-
fice considers that to assimilate the term ‘use’ to ownership and possession
would weaken the revised Convention by comparison with Convention
No. 107, which recognises the right to ownership; it has therefore dealt
with this question separately. The Government of India considers that the
concept of possession is unacceptable, and proposes its deletion. This
wording would, however, correspond to cases in which the rights which
indigenous or tribal peoples have acquired through occupation should be
recognised, but it is not appropriate to recognise them through ownership.
Several respondents, and the Meeting of Experts convened on this question
in 1986, have put forward effective arguments in favour of including the
concept, and representatives of indigenous and tribal peoples themselves
have indicated that they often attach more importance to possession than
to ownership.” (Report IV (2 A) ILO 76th Sess. 1989, 36).
48 Swepston, see note 28, 700. He also refers to the fact that the introduction
of “use” alongside “ownership and possession” was rejected. See also
Barsh, see note 31, 224-25.
49 Swepston, see note 28, asserts: “No consensus appeared to exist among the
members of the Committee on either the meaning or the implications of
the wording that it adopted in this sentence. It would seem, however, that
the Committee’s intent was not to weaken the right of ownership which
existed in Convention No. 107, but rather to make the new convention
more broadly applicable to a wide range of circumstances”, (700). See also
Barsh, see note 31, 224-25 on protection of “the highest form of ownership
or tenure accorded to others in the country.”
24 Max Planck UNYB 8 (2004)
50 The ILO Guide, see note 30, asks the following: “Does this mean that in-
digenous and tribal peoples always have the right to title over their tradi-
tional lands? Not necessarily – the Convention talks of ‘rights’ in the plu-
ral. There are many cases in which indigenous and tribal peoples do not
have full title to their traditional lands. After a long discussion in the Con-
ference, it was concluded that in some circumstances the right to possession
and use of the land would satisfy the conditions laid down in the Conven-
tion, as long as there was a firm assurance that these rights would continue
… It should be made very clear that this sentence is not meant to deprive
these peoples of the greatest degree of land rights attainable. It had to be
drafted in a way that would take into account different situations, and the
fact that not all indigenous and tribal peoples are in a position to exercise
the full rights of ownership.”
51 This was adduced by a majority of the Sami Rights Committee’s working
group on legal matters, NOU (Norway’s Official Reports) 1993: 34, 56.
Ulfstein, Indigenous Peoples’ Right to Land 25
terpret the provision along limiting lines, but whether such considera-
tions call for a limiting interpretation.
When proposing the Finnmark Bill, the Norwegian Government
claimed that considerations of purpose will guide the establishment of
what rights are to be recognised in the particular case, and that “the sa-
lient point (must) be that the indigenous people’s right of disposal over
their lands is such that the aim of the ILO Convention’s provisions is
achieved”.52
In connection with this statement, reference can be made to article
13 para. 1, requiring that governments shall, when interpreting the pro-
visions of the Convention concerning land rights, respect the impor-
tance for indigenous peoples’ culture and spiritual values of their rela-
tionship with the lands. Furthermore, indigenous peoples’ “social, cul-
tural, religious and spiritual values and practices” shall be recognised
and protected (article 5 (a)).
An issue in this connection is whether the purpose goes further than
providing for recognition and protection of the actual enjoyment of a
property or, put it another way, whether the exclusivity, control and
right of “residual use” inherent in rights of ownership and possession
“over-fulfil” the purpose. If the purpose is understood to be merely to
provide indigenous peoples with a stable basis for their culture and fu-
ture development, these aspects of the right of ownership and posses-
sion could appear to be superfluous. However, the provision must also
be interpreted in light of article 7 para. 1, which gives the indigenous
peoples the right to decide over the development of their lands and to
exercise control over their economic, social and cultural development.
Article 8 para. 2 assures the right to maintain the indigenous peoples’
customs. This does not, however, provide a basis for limiting the in-
digenous peoples’ rights to what is necessary for the preservation and
development of their culture and influence on land management.
Accordingly, when the introductory provisions are viewed as a
whole, the purpose makes no allowance for any clarifying interpreta-
tion of the provision in relation to what is implied by its wording and
background. Hence considerations of purpose cannot provide grounds
for recognition of anything less than rights which afford the indigenous
peoples such control and disposal as accrues to the holder of rights of
ownership and possession. How rights of ownership and disposal are to
c. Article 15
53 See ILO Report VI (1) 75th Sess. 1988, 72: “During the Meeting of Experts
it was noted that in many countries those who hold title to land do not
have rights to the subsoil and other resources; even though indigenous and
tribal peoples have special needs and special claims in regard to such re-
sources, a stronger provision which simply extends ownership of these re-
sources to these peoples would prove incompatible with the legal systems
of a number of countries.”
54 See Swepston, see note 28, 703.
28 Max Planck UNYB 8 (2004)
both categories of land areas; see article 13 para. 2 where this is ex-
pressly stated.59
In areas over which indigenous peoples have rights of ownership
and possession, the right to participate in the use and management of
natural resources will primarily be of significance for public law rules
on the exploitation, management and protection of natural resources.
They will already enjoy the private law right to exploit the natural re-
sources by virtue of the rights that are recognised in pursuance of article
14. In other words the provision entails a right to participate in the
public law management of natural resources. Article 15 para. 1 provides
a right to “participate in the use”, in contrast to for example article 15
para. 2 which refers to “consult these peoples” and article 6 which men-
tions “consult the peoples concerned.” Based on the wording, it is natu-
ral to assume that the indigenous peoples must be represented in the
agencies that make decisions and are responsible for the management of
resources in the indigenous peoples’ lands. However, since the provi-
sion uses the word “participate” there cannot be any requirement that
public law management should be left to the indigenous peoples or that
the latter should be given decisive influence in matters concerning re-
sources pertaining to their lands. To the extent that lands under article
14 para. 1 first sentence are situated in municipalities where the indige-
nous peoples are in a majority or constitute such a large part of the
population that they can be said to participate in the formation of the
municipality’s policies and decisions, the assumption would be that the
requirement is fulfilled where municipal agencies participate in the for-
mulation of decisions.
In land outside the scope of article 14 para. 1 first sentence, i.e. land
which the indigenous peoples inhabit or otherwise use, but where they
are not the predominant population, the right to participate in the ex-
ploitation and management of the natural resources must have both pri-
vate law and public law implications. This follows directly both from
the wording and from the fact that the provision of article 13 applies to
land to which the indigenous peoples do not have rights of ownership
and possession. In private law terms the provision entails that these
peoples must not only be given the right to use the land under article 14
para. 1 second sentence but also a right to exploit natural resources to
the requisite extent. In addition they must be entitled to participate in
the exploitation and management of natural resources in cases where
this may come into conflict with indigenous exploitation rights. Such
60 Norway has been criticized by the ILO for not conducting consultations
under article 15 para. 2 prior to granting mineral exploration permits
(Comments made by the Committee of Experts on the Application of
Conventions and Recommendations (from 1990) Indigenous and Tribal
Peoples Convention, 1989 (No. 169), CEACR 1995, 65th Sess., para. 23).
32 Max Planck UNYB 8 (2004)
1. Introduction
The Sami people inhabit areas of Sweden, Finland and Russia, but most
of its population (more than 40.000) lives in Norway. The rights to the
land areas in Finnmark, which is the northernmost county of Norway
2
of 48.649 km (larger than Denmark), have long been disputed. The
Sami Rights Committee was established by the Norwegian government
in 1980 as a result of the conflict over the interference of hydro-electric
power development in the Alta-Kautokeino watercourse. The first re-
port by the Committee resulted in the Sami Act of 1987 and establish-
ment of the Sami Parliament, and a new article 110 A of the Norwegian
Constitution relating to the Sami people in 1988. The Committee sub-
mitted a new report in 1997 relating to rights to natural resources and
land.61 This report formed the basis for the government’s Bill concern-
ing land rights and management in Finnmark (the Finnmark Act).62
The proposed Finnmark Act presents a common administrative ar-
rangement for all land in Finnmark that is currently registered as the
property of Statskog SF, i.e. 95 per cent of the county’s land area. The
Bill establishes a legal entity, the Finnmark Estate. Registered title to
state land in Finnmark is transferred from Statskog to the new
Finnmark agency. This unequivocally turns the new agency into a land-
owning body, and not, in principle, an administrative agency. In relation
to public authorities, the Finnmark Estate essentially has the same
status as a private owner, subject to two important modifications: a.) its
legal position can be changed by subsequent legislation (section 19); and
b.) compensation will not be paid in the event that land is expropriated
for a number of public purposes (section 18). In relation to private right
holders the situation is more complicated. The Bill expressly makes no
encroachments on private or collective rights based on prescription or
immemorial usage, while not defining what types of rights this may in-
volve in different geographical areas (section 5). Evidently there may be
a question here of rights of use within the usual meaning of property
law. However, in light of recent practice by the Norwegian Supreme
Court,63 the possibility cannot be ruled out that in some areas the local
2. Article 14
adopted. Hence the Sami Parliament does not have ultimate control
over the content of the guidelines.
It is also important that section 10 first paragraph does not entail
that the Sami Parliament’s guidelines represent binding limitations on
the Finnmark Estate’s decisions concerning changes in the use of uncul-
tivated land. This provision establishes that the guidelines shall underlie
assessments of what significance changes in the use of uncultivated land
will have for Sami culture, reindeer husbandry, commercial activity and
social life: the guidelines do not establish binding rules for the content
of the Finnmark Estate’s decisions. This is also clear from the commen-
tary to this provision which states: “The guidelines are not directly
binding, but there is a clear presumption that substantial importance
will be given to the guidelines in the assessment.”64
This entails that importance shall be attached to the Sami policy
guidelines when the Finnmark Estate considers changes in the use of
uncultivated land. According to section 4 second paragraph, assess-
ments made by state, county municipal and municipal authorities shall
also be based on the guidelines. But since the Sami Parliament does not
have the final say on the content of the guidelines and the guidelines are
not binding for decisions made concerning the use of uncultivated land,
the provisions on the guidelines cannot be placed on the same footing as
the rights of ownership and possession required by ILO Convention
article 14.
Section 10 second paragraph sets forth rules on the decision-making
process in regard to changes in the use of uncultivated land:
“Decisions concerning changes in the use of uncultivated land al-
ways require the support of at least four board members who are
entitled to vote if the whole minority bases its opinion on due con-
sideration for Sami culture, reindeer husbandry, commercial activity
and social life assessed on the basis of the guidelines of the Sami Par-
liament. If the majority consists of four or less, a collective minority
may during the board meeting demand that the matter be placed be-
fore the Sami Parliament. If the Sami Parliament does not ratify the
decision of the majority or does not consider the matter within a
reasonable time, a collective majority of the board may demand that
the Finnmark Estate place the matter before the King [i.e. the Gov-
ernment], who shall then decide whether the decision shall be ap-
proved. Such approval of the decision has the same effect as such a
decision by the board.”
This provision entails that at least one representative appointed by
the Sami Parliament must support a decision to change the use made of
uncultivated land in order for the decision to be made, in cases where a
collective minority justifies its standpoint with reference to Sami cul-
ture etc. on the basis of the Sami Parliament’s guidelines. This collective
minority can have the decision submitted to the Sami Parliament, but
the Sami Parliament cannot prevent the decision from being made. A
collective majority of the board of the Finnmark Estate is namely enti-
tled to submit the matter to the King who will then make a final deci-
sion.
The above procedure provides protection against interference with
Sami culture, reindeer husbandry, commercial activity and social life.
The commentary to this provision states that the procedure “will assure
the Sami Parliament substantive influence over land management.”65 It
also states that “it is the state authorities that are ultimately responsible
for compliance with international law obligations and for ensuring that
ratification of a decision regarding changes in the use of uncultivated
land does not conflict with the protection afforded by international
law.”66 However, the procedure does make encroachments possible
provided that majority decisions are supported by a minority of the
board representatives appointed by the Sami Parliament. This entails
that the Sami, as an indigenous people, do not have rights on a par with
owners as required by article 14 of the Convention. Nor is it sufficient
to cite the state authorities’ obligation to comply with obligations un-
der international law if the act lays the basis for a decision-making sys-
tem that is contrary to international law.
Equally, the Bill’s object and purpose clause (section 1) cannot make
any difference in relation to the administrative arrangement’s status un-
der international law:
“The purpose of the Act is to facilitate the management of land and
natural resources in the county of Finnmark in a balanced and ecol-
ogically sustainable manner for the benefit of Sami culture, reindeer
husbandry, commercial activity and social life, the inhabitants of the
county and the public at large.”
3. Article 34
ferent rights for indigenous peoples than those afforded by other provi-
sions of the Convention. Since the Bill is not considered to fulfil the
Convention’s requirements in the geographical areas encompassed by
article 14 para. 1 first sentence, the issue is whether this can be compen-
sated for with Sami influence over a significant portion of the lands in
Finnmark, in an area which is far larger than that which is assumed to
be encompassed by article 14 para. 1 first sentence.
It may be asserted that such an arrangement gives opportunities to
protect Sami interests in 95 per cent of lands in Finnmark, which may,
inter alia, be of positive significance for reindeer husbandry. Moreover,
it is conceivable that such an arrangement would be more acceptable in
relation to non-Samis, and would thereby mitigate conflict since geo-
graphical division into areas under and outside Sami control would be
avoided. However, it is difficult to compare the disadvantages of having
less control over the lands encompassed by article 14 para. 1 first sen-
tence with the advantages of having influence over a significantly larger
geographical area.
The ministry bases itself on the notion that the crucial point is the
“totality of the arrangement and whether it effectively promotes the
considerations underlying the provisions of the Convention” and has
stated that “an overall solution for Finnmark will be in accordance with
international law if the Sami people acquire sufficient influence over
land management in such a way as to ensure a stable basis for the pres-
ervation and development of Sami culture.”68
How far the Bill assures a stable basis for the preservation and de-
velopment of Sami culture depends on how the Finnmark Estate and
the state exercise the powers which the Bill accords the board and the
state, respectively. The rules on decision-making are formulated so as to
enable the Sami Parliament to exercise influence on the basis employed
for assessing the impact of the management on Sami culture, reindeer
husbandry, commercial activity and social life. Cases concerning
changes in the use of uncultivated land which are not supported by a
majority of the Sami representatives can be submitted to the King by
the Sami Parliament. In other words, the design of the Bill lays the basis
for the state to fulfil its obligation under the ICCPR article 27 to pro-
tect the material basis for Sami culture. However, this is not crucial to
an assessment of whether the obligations under the ILO Convention
are fulfilled.
4. Case Law
69 The Danish State issued on 9 October 1997 the following declaration upon
ratifying the Convention:
“With reference to article 14 of the Convention, the Danish government
wishes to state the following:
1. In Denmark there is only one indigenous people in the meaning of Con-
vention no. 169. This is the original population of Greenland, the Inuit.
The Greenland Home Rule Act (no. 577 of 29 November 1978) introduced
a home rule system for Greenland. The home rule system consists of a
popularly elected assembly, the Landsting or Home Rule Parliament,
elected by permanent residents of Greenland, and a politically elected lead-
ership, the Landsstyret or Home Rule Administration, which is elected by
the Home Rule Parliament. According to the Greenland Home Act,
Greenland is a special community within the Kingdom of Denmark.
2. The Greenland Home Rule Act (no. 577 of 29 November 1978) laid a ba-
sis for legislative and administrative competency in a large number of judi-
cial areas to pass to the Home Rule Administration. By agreements be-
tween the Danish government and the Greenland home rule administra-
tion, legislative and administrative competency in a number of the areas en-
compassed by the Convention in question have subsequently been trans-
ferred.
3. It has at no point been possible to achieve land ownership rights in
Greenland, either for physical or legal entities.
4. Property rights to land in Greenland are organised in a unique manner
along traditional lines. The various legal and actual rights, together consti-
tuting the right of ownership, are divided between the State, the Greenland
Home Administration and the individual Greenlanders. The point of de-
parture is that the public authorities -- the State -- has right of ownership
to Greenland’s lands as such. However, the day-to-day right of determina-
tion over lands in Greenland resides with the Greenland Home Rule Ad-
ministration which i.a. is empowered to render decisions on the allocation
of land use rights. Greenlanders who are allocated land use rights in
Greenland are entitled to erect buildings on land so allocated. Such build-
ings may in given cases be mortgaged, and may, with the Home Rule Ad-
ministration’s permission, be made over to others together with the right to
use the land on which they built.
The state of law described above applies to all citizens of Greenland, both
the original Greenland population and immigrants. As mentioned, the state
of the law is of very old provenance inasmuch as it has never been possible
for individuals to acquire complete ownership rights to land in Greenland.
Hence it is a matter of a state of law determined by tradition which has
very long historical roots in Greenland society and which Greenland’s
Home Rule Administration attaches great importance to preserving.
42 Max Planck UNYB 8 (2004)
people have a majority. This system has been accepted by the Inuits, as
well as by the ILO.70
It could be asserted that the fact that Denmark has gained ILO ac-
ceptance for an administrative system for the whole of Greenland that
is not based on a division of lands falling respectively inside and outside
the geographical scope of article 14 para. 1 first sentence, means that it
must be possible to opt for the same type of solution for Finnmark.
However, the situation in Greenland cannot be compared with that in
Finnmark since the Inuit people of Greenland account for more than 80
per cent of the population of this land area. The fact that the Sami peo-
ple also enjoy voting rights and are eligible for election to the Finnmark
County Council does not mean that the influence that the Sami minor-
ity in Finnmark as a whole has over the governance of the Finnmark
Estate will be comparable with the Inuit people’s influence over the
Greenland Home Rule Administration. Besides, the Inuit people have
not laid claim to special arrangements for administration of the lands in
question; they have on the contrary declared to the ILO that they agree
with the existing arrangement.
Furthermore, the ILO has already had the opportunity to consider
the Finnmark Bill in connection with Norway’s report of 2003. The
ILO Committee (CEACR) made, inter alia, the following observation
departure from the protection that the ILO Convention articles 14 and
15 affords the Sami people on a collective basis.
The right of the Sami Parliament to consent to the arrangement in
the Finnmark Bill finds support in the above-mentioned observation of
the ILO Committee in connection with Norway’s report of 2003:
“19. The process and the substance are inextricably intertwined in
the requirements of the Convention, and in the present conflict. It
appears to the Committee that if the Sami Parliament, as the ac-
knowledged representative of the Sami people of Norway, were to
agree to the proposal, they could accept this solution as a resolution
of the claims of land rights which have long been the subject of ne-
gotiation between the Sami and the Government.”75
V. Conclusions
76 Letter of 14 June 2004 from the Ministry of Justice to the Justice Commit-
tee of the Norwegian Parliament.
Ulfstein, Indigenous Peoples’ Right to Land 47
are being discussed with the Sami Parliament. The consultations and
possible mutual consent are of political importance, but may also be de-
cisive for the status of the arrangement under international law.